Security Trust & Savings Bank v. Carrier

CRAIG, J.

The plaintiff appealed from an adverse judgment in an action for collection of two promissory notes executed by the defendant Carrier and praying that the title to certain real property alleged to have been pledged as security therefor be quieted as against the defendant Lohr.

The notes in controversy were signed by George W. Carrier and B. A. Basque, and it was alleged that to secure the payment thereof Carrier assigned to the payee a certain agreement for the purchase of certain specified real property in Los Angeles County, together with his interest in said property; and that the defendant Lohr claimed an interest therein, subordinate to that of the plaintiff. By an answer and cross-complaint the defendants joined issue, and

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affirmatively alleged that the notes were executed by Basque as principal debtor, and that they were signed by Carrier only as an accommodation and without consideration; that the contract in question was merely left with the bank at its request and as a courtesy, and without consideration; that Carrier stated that he had sold the contract and realty to Bohr, and that the latter was entitled to a deed from the original owners upon making a small payment. They further alleged that said contract was left with and received by the bank “with the express understanding and agreement that no right or diminution of same was to be exercised or would be exercised or claimed by the said bank, and with the agreement that same would be returned to the defendant Carrier upon his demand.” The trial court found in favor of the defendants in these particulars, and that Bohr’s interest in the property was paramount to that of the plaintiff. It further found that prior to the time of trial the defendant Carrier was “duly adjudged a bankrupt under the bankruptcy laws of the United States of America; that the notes and indebtedness herein sued upon by plaintiff were included among the obligations scheduled in said Carrier’s bankruptcy proceedings, and that said Carrier has, in said bankruptcy proceedings, been released and discharged from any obligation or liability upon the notes or indebtedness,” and is not indebted to the plaintiff.

It is first contended that the findings of fact are not supported by the evidence. The parties stipulated that respondent Carrier had been discharged in bankruptcy, but appellant’s ground for reversal is that “the bar of the statute was not pleaded . . . and the discharge of the bankrupt did not cause the debt to become paid.” True, a discharge in bankruptcy, like payment, is a plea in bar